Trump sued for violating the First Amendment on Twitter. Sad!

The free speech institute at Columbia University—along with seven citizens from across the country—have sued President Trump for violating the First Amendment by blocking Twitter followers because they criticized him.

Perhaps this case sounds silly or trivial. It isn’t. Filed in New York federal court, the case highlights critical and unanswered questions about free speech in a digital world. The case is called Knight First Amendment Institute at Columbia University et. al. v. Donald J. Trump, et. al.

Trump accused of silencing political dissent on social media

Anyone with a TV, computer, or phone knows that President Trump has quite the penchant for Twitter. His @realDonaldTrump handle has 33 million followers, and he has made it an important source of news about his Administration’s policies. The president uses Twitter to advocate his policy positions, and the Administration has said his tweets are “official statements.”

Although the president dishes out criticism in the Twittersphere, he is apparently none too fond of taking it. According to the new lawsuit, President Trump and members of his staff have blocked people from following his Twitter account “because of opinions they expressed in replies to the President’s tweets.” As a result, these people cannot even view his tweets, let alone engage in political debate about them.

I’ll highlight one of the plaintiffs as an example. Rebecca Buckwalter is a writer and legal analyst. On June 6th, President Trump tweeted, “Sorry folks, but if I would have relied on the Fake News of CNN, NBC, ABC, CBS washpost or nytimes, I would have had ZERO chance winning WH.” Buckwalter replied to the tweet. She said, “To be fair you didn’t win the WH: Russia won it for you.” According to the lawsuit, her reply “received 9,033 likes and 3,371 retweets.” But, she alleges, she soon “discovered she had been blocked from the @realDonaldTrump account.”

The lawsuit contends the president and his staff violated the First Amendment by blocking people critical of him. Are the plaintiffs right?

Social media is “the modern public square”

To begin with, a hallmark of our democracy is “uninhibited, robust, and wide-open” political speech. See New York Times v. Sullivan, 376 U.S. 254 (1964). That speech often includes harsh criticism of our elected officials. Courts are used to dealing with these issues in physical spaces, and even in print. But it wasn’t until recently that courts had to grapple with them in a digital world.

We all know that social media—for better or worse—has become an outlet for political discourse. Just last month (in a case arising in a very different context), the Supreme Court called social media the “modern public square,” and recognized it as “perhaps the most powerful mechanism[] available to a private citizen to make his or her voice heard.” Packingham v. North Carolina, slip op. at 8, 582 U.S. __ (2017). And it’s true that Twitter allows to citizens not only to exchange ideas with each other, but to do so directly with their elected officials, and in a way that they could not from atop a soapbox in the center of town. The lawsuit essentially makes this very point, calling @realDonaldTrump “a digital town hall,” where the president and others exchange political views.

The First Amendment does not protect all political speech at all times

Despite the hallowed place we bestow upon political speech, the First Amendment does not protect all political speech under all circumstances. There are, of course, some limits. For instance, defamation is not protected. Nor are threats of violence or speech that crosses the line from political discourse into harassing conduct. This case is likely to turn on another set of limitations on political speech though.

The First Amendment offers varying levels of protection to speech depending on where it takes place—or in legal terms, its “forum.”

At one end of the spectrum are traditional public forums. These are places that have traditionally been open for public expression; somewhere to stand on the soapbox—a public park for instance. Restrictions on political speech in a traditional public forum are subject to the highest level of constitutional scrutiny, and courts typically strike them down.

At the other end of the spectrum are “nonpublic forums”—places not traditionally set aside for public expression. Airport terminals, military bases, and indoor shopping malls are all classic examples. There, the government has wider latitude to restrict speech, as long as it does so reasonably and without regard for the speaker’s viewpoint.

Right in the middle are “limited public forums.” These are spaces created by the government for the purpose of public expression, but only under certain circumstances. One example would be a meeting room at a public university. Even though the government can restrict the categories of speech that occur in a limited public forum, it cannot discriminate based on the viewpoint of the speaker.

This new free speech lawsuit seems to contend @realDonaldTrump is a limited public forum.

Does the First Amendment apply to political speech on Twitter?

When the president makes a statement on Twitter, thousands of people typically reply, setting off a chain reaction of political discourse. Banning one side from participating in that debate—and from even seeing it—simply for criticizing the president sure smacks of viewpoint discrimination. And government censorship of speech based on its viewpoint violates the First Amendment, regardless of the forum.

Let’s put this in an analog context. Consider an open political town hall at which the president talks policy with people from the audience. Now imagine White House staff refused to let anyone speak who might be critical of the president. Worse yet, imagine they kicked people out of the building simply for disagreeing (in a non-disruptive way) with the president’s policies. This would be suppression of core political speech. Blocking someone on Twitter for the same reason does not seem too different.

Some have argued that because a private company owns Twitter, the First Amendment does not apply to the president’s Twitter feed. My sense is a court would probably disagree. The ink is not yet dry on the Supreme Court’s decision recognizing social media as the “modern public square.” And while Twitter itself is not bound by the First Amendment, when public officials engage with the public, they are.

The future of free speech on the internet

It’s too soon to say how this free speech lawsuit will play out. The courts will have to be careful to avoid the law of unintended consequences in this emerging area. There are a host of line-drawing and hypothetical questions to consider:

• Does it matter if the speech violates the social media platform’s terms of service?
• When does political speech on social media cross the line into unprotected harassment?
• Does free speech limit how a public official may use social media purely for personal reasons—to interact with friends and family, as opposed to engaging the public?

Courts are going to grapple with these questions in the years to come.

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The Trump Twitter lawsuit is the next chapter in our long history of protecting political speech, and specifically, political dissent. Even though it might seem silly at first glance, to this Cleveland free speech lawyer, the lawsuit is pretty #important.

Matt is a former federal appellate law clerk, and an adjunct law professor at Case Western Reserve University. He is also a frequently invited speaker on an array of legal topics. Recognized for his accomplishments in the legal field, Matt holds the prestigious Martindale-Hubbell “AV Preeminent”® rating. Twice, U.S. News and World Reports has named him to its list of Cleveland employment law “Best Lawyers.” And Super Lawyers Magazine has named him a “Super Lawyer” for employment law in Cleveland four times. Twice before that, the Magazine named him one of its “Rising Stars.”

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